UID- 21BLL1118

UNIVERSITY INSTITUTE OF LEGAL STUDIES

CLASS MOOT COURT

2024

BEFORE

HON’BLE COURT OF SESSIONS, MUMBAI, MAHARASHTRA

In the matter of

S.C. No. of 2020

STATE OF MAHARASHTRA ............................................................................... PROSECUTION

VERSUS

DR.ROHAN SAHU ............................................................................................ DEFENDANT

MEMORIAL ON BEHALF OF PROSECUTION

 TABLE OF CONTENTS

PARTICULARS PAGE NO

1. INDEX OF ABBREVIATIONS i

2. LIST OF AUTHORITIES ii - iii

3. STATEMENT OF JURISDICTION iv

4. STATEMENT OF FACTS v - vi

5. STATEMENT OF ISSUES vii

6. SUMMARY OF ARGUMENTS 1-2

7. ARGUMENT ADVANCED
i. WHETHER EVIDENCE FROM NEHA’S DEVICE IS 3–4
ADMISSIBLE IN COURT OF LAW.
ii. WHETHER EVIDENCE STOLEN FROM THE
CRIME SCENE IS ADMISSIBLE IN COURT OF 5

LAW .
iii. WHETHER DR. ROHAN AND RAJESH CAN BE 5–9
SUBJECTED TO NARCO ANALYSIS TEST.
iv. WHETHER ROHAN CAN BE CHARGED UNDER
SECTION 316 OF IPC. 9 – 10

v. IS IT A FIT CASE WHERE THE COURT SHOULD

ADD A CHARGE UNDER SECTION 302 OF IPC 10 – 12
AND TRY THE ACCUSED PERSON FOR THAT
CHARGE AS WELL?

8. PRAYER 13
 INDEX OF ABBREVIATION

S.NO ABBREVIATION FULL FORM

1 AIR ALL INDIA REPORTER

2 HC HIGH COURT

3 SC SUPREME COURT

4 IPC INDIAN PENAL CODE

5 HON’BLE HONORABLE

6 I.E. THAT IS

7 ART. ARTICLE

8 RTI RIGHT TO INFORMATION

9 LJ LAW JOURNAL

10 PVT. PRIVATE

i
 LIST OF AUTHORITIES

CASES REFERRED:

1. Yusuf Ali v. State,AIR 1967 SCR(3) 720

2. R M Malkhani v. State of Maharastra, AIR 1973 SC 157
3. Vikram Singh v. State of Punjab, AIR 201 SC 3227
4. Pooran Mal v. Director of Inspection (investigation) of incometa, New Delhi, AIR
1974 SC 348
5. Yasahwanth Sinha& ors v. Central Bureau of Investigation,AIR2019 SC 1802
6. Magraj Patodia v. RK Birla, AIR 1971 SC 1295
7. State of Bombay v. Kathikalu,AIR 1961 SC 1808
8. Selvi v. state of Karnataka & anr, AIR 2010 (7) SCC 263
9. Nandini Satpathy v. Dani (p.l), AIR 1978 SC 1025
10. M.P Sharma and Others v. Satish Chandra, AIR 1954 SC 300
11. Kehar Singh v. State ( delhi administration),AIR 1988 SC 1883
12. Yusuf S.K v. State, AIR 1954 CAL 258

BOOKS REFERRED

1. K.N Chandrasekharan Pillai, R.V KELKAR’S CRIMINAL PROCEDURECODE (

Eastern Book Company, 7TH EDN, 2021)
2. The Indian Evidence Act, MR KAMLESH SINGH (VIDIHI BHARTI,3RDEDN,2019)
3. Batuk Lal, THE LAW OF EVIDENCE ,(CENTRAL LAW AGENCY,24TH EDN,
2023)

NEWSPAPER EDITORIAL

1. EDITORIAL, “THE CURIOUS CASE OF NARCO TESTS IN AARUSHI HEMRAJ

MURDER MYSTERY” THE QUINT, 25TH JULY 2015, 5.16 A.M IST

ii
 2. EDITORIAL, “FROM TELGI SCAM TO AARUSHI MURDER CASE: HOW NARCO
TEST FARED IN FAMOUS INVESTIGATIONS” ENGLISH JAGRAN,18TH
NOVEMBER,2022.
3. EDITORIAL, “ NARCO TEST AND THE LAW” MUMBAI MIRROR, 7TH
SEPTEMBER, 2006.

ACTS

1. The Indian Penal Code, 1860 (ACT 45 OF 1860)

2. The Indian Evidence Act, 1872( ACT 1 OF 1872)
3. The Constitution of India
4. The Code of Criminal Procedure, 1973 (ACT 2 OF 1974)

iii
 STATEMENT OF JURISDICTION

The Hon’ble court has jurisdiction to try the matter under section 26 read with section 28 , 177
and 209 of code of criminal procedure , 1973.

SECTION 26

Subject to other provision of the code

(a) Any offence under Indian penal code may be tried by –

i. The high court
ii. The court of session
iii. Any other court by which such offence is shown in the first schedule as triable.

SECTION 28

A session judge or Additional Session Judge may pass any sentence authorized by law ; but any
sentence of death passed by any judge shall be subject to confirmation by the High Court.

SECTION 177

Every offence shall be ordinarily be inquired into and tried by a court within whose local
jurisdiction it was commited .

SECTION 209

When in a case instituted on a police report or otherwise, the accused appears or is brought before
the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court
of Session, he shall- (a) commit the case to the Court of Session; (b) subject to the provisions of
this Code relating to bail, remand the accused to custody during, and until the conclusion of, the
trial; (c) send to that Court the record of the case and the documents.

iv
 STATEMENT OF FACTS

1. Rohan Sahu , aged 40 years moved to India in 2008 , after teaching in U.K and United
States for many years. He got an excellent job at the Advanced Centre for Mathematics in
Mumbai as an Associate Professor. Also he was given particular post for guiding PHD
students.
2. Neha was born in 1986, Bombay ( now Mumbai) . She went for masters in mathematics
in oxford . She returned to India in 2010 and enrolled for doctoral studies under Dr
Rohan Sahu.
3. They both fell in love with each other and wanted to get married but her parents were
against their marriage because they wanted their daughter to settle in U.K and were also
concerned about the age gap between them.
4. Both of them got married in 2013. After completing her doctoral degree in 2016, she got
job in the same mathematics centre as Dr Rohan ( her husband ).
5. Among few friends of Rohan and Neha , they were very close to Gujrals ( Rajesh and
Suneet gurjral) . Rajesh Gujral was an IT wizard working in Mumbai and Suneet was an
Artist and Interior Designer . Rajesh was such a brilliant professional that he could hack
into any computer and home system manually and take control of it .
6. Around 2018 , rumour of Rohan being into relationship with Neha surfaced and that led
to differences among Neha and Rohan. Both of them denied the allegation made upon
them. Rohan due to increasing workload and pressure many a times assaulted Neha and
censured her.
7. In 2019 , Neha got pregnant but Rohan asked to abort the child as he was not ready for
the family. He also alleged that the baby Neha is carrying is of Rajesh. Disgusted by
behavior of Rohan , Neha left her matrimonial home and shifted to a nearby hostel , later
she moved with the Gujrals.
8. On 5th of May Rohan called Neha to meet his parents and that he wanted to settle things
between them. On 11th of May , Neha along with Rajesh went to Rohan’s house . They
were cordially welcomed . Rohan citing his parents health condition informed them about
their absence.
9. After having dinner that night Neha was feeling restless so Rohan asked her to stay , to
which Rajesh reluctantly agreed . The next day (i.e on 12 th of May) Rajesh went to take
Neha with him but no one was answering the doorbell .
10. He reached Rohan through a phone call , who in return informed him that he had left for
office at 7.00 A.M and Neha was not picking his phone too. Rajesh then went inside the
house and found Neha hanging in the bedroom from the ceiling fan.
11. Neha’s body was sent for postmortem and various evidences was taken from the crime
scene. There was a missing Mini Music player lying on the bedside of Rohan.
12. When Rajesh was questioned, he failed to give any plausible explanation of how he got
ingress into the house. When the post mortem report came Rohan was arrested.

v
13. During Investigation Rajesh confessed to the police that he had taken the mini music
player lying on Rohan’s bedside and claimed that if opportunity is given to him he can
retrieve the last conversation between Neha and Rajesh as that music player can record
conversation if word “Neha” is uttered twice. He is willing to do so only if he is not
charged with theft or trespass or any other offence.
14. Rohan believed that Rajesh was holding the music player for ransom and he cannot
present it for evidence as it violates his Right to Privacy. Rohan also submitted to Narco
analysis test and while Rajesh refused for the same .

vi
 ISSUES RAISED

1. WHETHER EVIDENCE FROM THE NEHA DEVICES IS ADMISSIBLE IN A

COURT OF LAW?

2. WHETHER EVIDENCE STOLEN FROM THE CRIME SCENE IS

ADMISSIBLE IN A COURT OF LAW?

3. WHETHER DR. ROHAN AND RAJESH CAN BE SUBJECTED TO NARCO

ANALYSIS?

4. WHETHER DR. ROHAN CAN BE CHARGED UNDER SECTION 316, IPC?

5. IS IT A FIT CASE WHERE THE COURT SHOULD ADD A CHARGE U/S 302
IPC AND TRY THE ACCUSED PERSON FOR THAT CHARGE AS WELL?

vii
 SUMMARY OF ARGUMENTS

[1]. WHETHER EVIDENCE FROM NEHA’S DEVICE IS ADMISSIBLE IN COURT OF

LAW?

The Evidence stolen from the crime scene is admissible in the court of law. These
Evidences
are relevant to the case and authentic sources since they are primary pieces of Evidence. The
primary data of the original recordings stored in these devices is admissible in the court with
a certificate under section 65(B)(4) of the Evidence ACT. There has been no breach of privacy
of Dr. Rohan.

[2]. WHETHER EVIDENCE STOLEN FROM THE CRIME SCENE IS ADMISSIBLE IN

A COURT OF LAW?

The Evidence stolen from the crime scene is admissible in the court of law. There is no law
that bars such Evidence. The only bar is that the Evidence should be relevant to the case and
genuine. In this case all these factors have been proven in issue

[3]. WHETHER DR. ROHAN AND RAJESH CAN BE SUBJECTED TO NARCO

ANALYSIS?

The subjects should not undergo the NARCO test, because they may intermingle the present
incident with some other incident. There is no way to know if the subject is relating to
nonexisting imaginary incidents, which he believes to be true in a normal state of mind. The
result of interrogation may be the outpourings of such events again.

[4]. WHETHER DR. ROHAN CAN BE CHARGED UNDER SECTION 316, IPC?

The accused, compelled the deceased to abort her child and also caused injuries on the victim,
which lead to the death of the quick unborn child. This is evident from the post mortem report of
the deceased. So the accused should be held guilty for the said offences.

1
[5]. IS IT A FIT CASE WHERE THE COURT SHOULD ADD A CHARGE U/S 302 IPC
AND TRY THE ACCUSED PERSON FOR THAT CHARGE AS WELL?

It is humbly submitted that the Hon’ble court should add a charge U/S. 302 IPC. The two
ingredients of murder i.e., mens rea and actus reus are fulfilled in the current case.
Circumstantial Evidence points out to the fact that to could not have been a case of suicide but
murder.

2
 ARGUMEMTS ADVANCED

[1] IS THE EVIDENCE FROM THE NEHA’S DEVICE IS ADMISSIBLE IN THE

COURT OF LAW
• Evidence that are recorded in the mini media music player is acceptable as Evidence
.Mini media music player is included under the definition under section 2(i) 1 of the IT
ACT .The Evidence of electronic records generated in electronic form and stored as data
in both this devices are documents under Section 32 of the Indian Evidence ACT.
Section 6 of the Indian Evidence act states that “facts which though not in issue , are so
connected with a fact in issue to form part of the same transaction , are relevant , whether they
occurred at the at same time and place or at different times and places.
In this case the music player was present at the crime scene when the deceased was murdered.
The music player start recording when the word NEHA is uttered twice. We submit that during
the altercation between the accused and the deceased the word NEHA would have come up and
the music player started recording .The last few words of neha would have been recorded by the
music player hence it is a relevant fact as it could be treated as dying declaration under Section
32(1)3 of the Indian Evidence ACT. The recording of conversation by the music player and the
murder of neha are both part of the same transaction and so it is relevant to this case.
In the case of yusufalli vs State4 and R M Malkhani vs State of Maharastra 5 it was held that tape
record of relevant conversation is a relevant fact and is admissible under section 6 and 7 of the
Evidence ACT or digital Evidence is admissible in the court of law. In the malkhani case it was
also held that tape recorded conversation obtained illegally is also admissible in the court of law.

1
The Information Technology ACT, 2000 (ACT 21 of 2000), s.2(i)
2
The Indian Evidence ACT,1872 (ACT 1 of 1872),s.3
3
The Indian Evidence ACT,1872 (ACT 1 of 1872),s32(1)
4
Yusufalli v. State, AIR 1967 SCR(3) 720
5
R M Malkhani v. State of Maharastra, AIR 1973 SC 157

3
 • The mini media music player is a primary Evidence under section 62 of the Indian
Evidence ACT and therefore is admissible in the court of law . According to section 62
primary Evidence means the documents produced by itself for the purpose of inspection
by the court.
In the case of VIKRAM SINGH VS STATE OF PUNJAB6 the court held that the cassettes of
the tape recorded conversation was primary Evidence and did not require a certificate under
Section 65(B) of the Evidence ACT.

Prima facie all the arguments are pointed towards Dr rohan and not admitting the Evidence in the
media player would cause huge prejudice to the victim.
• The fACT that Dr rohan has not denied that the device can record conversation by
uttering the word NEHA twice proves that these device regularly stores Evidence . Also
Dr rohan has confessed to the nvestigating agency that the media player belonged to him.
The transcripts of recordings stored in the devices are all part of a computer network and
be treated as single computer system under section 65(3)(d).
• The right to privacy under Article 217 of the constitution is not absolute and can be
waived in respect of compelling state interest. It is not an absolute right and is subject to
certain restrictions too. The admissibility of the breach of privacy must be decided based
on the relevancy and the proportionality which ensures a rational nexus between the
objects and the means adopted to achieve them. Since no fundamental right under our
Constitution is absolute, in the event of conflict between two fundamental rights, as in
this case, a contest between the right to privacy and the right to fair trial, both of which
arise under the expansive Article 21, the right to privacy may have to yield to the right to
fair trial of the victim.
Therefore , in the light of above arguments we humbly submit that, in the present casse
there has been no breach of Dr Rohan’s privacy.

6
Vikram singh v. State of Punjab,AIR 2017 SC 3227
7
The Constitution of India, art. 21

4
 [2] THE EVIDENCE STOLEN FROM THE CRIME SCENE IS ADMISSIBLE IN A
COURT OF LAW

Stolen evidence is admissible in the court of law . In accordance with the Indian evidence act
evidence may be given of the existence or non existence of any facts in issue or of any relevant
facts . The evidence act does not talk about how such evidence is obtained , i.e whether illegally
or legally.

Supreme court in the malkhani case had held that in issues of admissibility of evidence it did not
matter how the evidence was obtained and that even it it was stolen it would still be admissible.
Moreover relevant evidence will be taken no matter how it is obtained .

In the case of POORAN MAL V DIRECTOR OF INSPECTION (INVESTIGATION) OF

INCOME TAX, NEW DELHI8 the court held that the test of admissibility of evidence lied in its
relevancy and that unless there was an express or necessarily implied prohibition in the
constitution or other law, evidence obtained as a result of illegal search or seizure was not liable
to be shut out.

The ruling in the Poornan mal case the was further upheld in the recent supreme court case of
YASHWANTH SINHA & ORS. VS CENTRAL BUREAU OF INVESTIGATION & ORS 9 it
was held that for a material to be considered its materiality is to be seen. Therefore, there can be
no dispute about the manner in which the evidence is procured . Also in the case of MAGRAJ
PATODIA V RK BIRLA10 the court held that the fact that a document was procured by
improper or even illegal means would not be a bar to its admissibility if it is relevant . Therefore,
in light of the above arguments we humbly submit that stolen evidence is admissible in the court
of law

[3]. WHETHER DR. ROHAN AND RAJESH CAN BE SUBJECTED TO NARCO

ANALYSIS?

The word Narco analysis was first coined by Horseley. It’s derived from the Greek word called
‘Narkc’ which means anaesthesia. It involves injecting a drug called sodium pentothal with
distilled water into the body of subject (accused or any suspect) in which the subject’s
imagination is neutralised and they are expected to divulge true information in relation to the

8
Pooran mal v. Director of inspection (investigation) of income tax, New Delhi,AIR 1974 SC 348
9
Yasahwanth Sinha & ors v. Central Bureau of Investigation,AIR 2019 SC 1802
10
Magraj Patodia v. RK Birla,AIR 1971 SC 1295

5
crime. Hence, Narco-analysis test is also called as the truth serum. The subject on such
administration enters ‘twilight stage’ the stage between conscious and unconscious state of mind
the subject enters in that situation were his actions are beyond his control. Narco analysis test
poses a lot of difficulties and is usually conducted with due caution and care considering various
situations. Administering too little narcotics in to the body of the subject may lead to further
faking scenarios and administration beyond the limit so provided may lead to further difficulties
as the subject may face coma or other health issues. In India Narco tests are administered in the
presence of experts in the field like anesthesiologist, psychiatrist, clinical psychologist, doctors,
supporting nursing staff, videographer etc. Before administering such dose prior consent of the
court and of the subject is taken, the person undergoing the test is explained the whole procedure
in addition with the consequences of such administration before acquiring consent. The whole
process is video recorded and the report is further submitted to the investigating authorities.

Constitutional validity of Narco-analysis test

Narco-analysis tests are conducted in rarest of rare cases. Narco-analysis tests do not hold any
constitutional legal validity because the person undergoing such tests is in the semi-conscious or
unconscious state of mind and is not in the position to understand the true nature of questions so
posed by the authorities because of which the results do not hold any evidentiary value and hence
are not admissible in the court of law. But it does act an aid for further investigation. Narco-
analysis tests, lie-detector or polygraph, brain-mapping or P300 without prior consent of the
accused or the subject would be violative of Article 20(3) of the Indian Constitution which deals
with the privilege against self-incrimination. The article states that “no person accused of any
offence shall be compelled to be a witness against himself”. Subjecting accused to such tests has
been considered as a blatant violation of Art 20(3) of the Indian constitution. Various questions
were raised by human rights activists and other professionals with regard to it’s constitutionality
as the subject is deprived of his freedom of privacy which is an integral part of Right to life and
personal liberty under Article 21 of the Indian constitution. It was observed in STATE

6
BOMBAY V. KATHIKALU11 that the to attract Article 20(3) it must be shown that the person
was compelled to undergo such tests by way of any threat or duress etc.

Admissibility of Narco-analysis tests

Before dwelling into whether Narco tests are admissible in the court of law as an evidence, it is
evident to understand what admission means. Admission under Indian Evidence act, 1872 is any
statement oral, documentary, electronic or otherwise given by any party or his representative in
any concerned matter relating to any subject matter of the suit in the court of law. In Ahmed
Saheb v. Sayed Ismail supreme court asserted that admission is a substantial piece of evidence
which can be further used to prove or disprove the facts in a given case.

In India, the term Narco-analysis is not foreign and such tests were conducted in various cases
like GODHRA CARNAGE CASE 2002, ARUN BHAT’S KIDNAPPING CASE, TELGI’S
CASE in 2003, ARUSHI TALWAR Murder case and the very recent one is Uttar pradesh’s
Hathras rape case. Questions with regard to admissibility were raised by many defence counsels
and human rights activist as it is against Right to privacy of an individual which is an integral
part of life and personal liberty under Article 21 of the Indian constitution. The administration of
Narco tests do yield information which is a basis for further investigation, but critics are
skeptical with regard to its pureness or truthfulness as the person is not in the state of conscious
mind which is an important factor. The results of Narco-analysis tests can be used as a
corroborating evidence (supporting evidence) which will further aid to investigate primary or
material evidence. The narco tests do hold validity in some circumstances like to further help
agencies to find the real culprit etc but are not admissible in the court of law as an evidence. But
if the result itself is not admitted due to some technicalities or complexities it won’t be used as a
corroborative evidence either. The Supreme court in SELVI V. STATE OF

11
State of Bombay v. Kathikalu, AIR 1961 SC 1808

7
KARNATAKA12 further went on to state, administration of Narco-analysis or lie-detector tests
without prior consent is unethical and would infringe the subject’s right to privacy.

The picture with regard to admissibility and constitutionality of such tests is now clear in India,
as such tests holds some value in investigation or as a corroborative evidence. But any
submission by the subject which is not voluntary or willful cannot be made admissible. Hence, to
note here, is the consent which is voluntarily given with no compulsion and force from the
authorities, before acquiring consent with regard to Narco-analysis tests full disclosure of facts
and procedure to be adopted shall be explained. The subject before undergoing the tests is made
full aware of all the facts which he deserves to know. Courts while considering any statement
obtained by way of such administration will take into notice the consent whether obtained or not,
and whether due legal process is undertaken prior the administration of such tests.Under the
Indian constitution Article 20(3) is not restrictive in manner it has wide meaning in itself as the
article covers the person’s right to remain silent. It is this right which assures personal privacy of
an individual. Right to silence was first pronounced in NANDINI SATPATHY VS PL
DANI 13were court said that no one can forcibly extract statements from the accused, who has
the right to remain silent during the process of investigation especially interrogation, by
administration of such tests like Narco would lead to forcible intrusion into one’s mind which is
against the right to privacy of an individual. The court went a step ahead in M P SHARMA V.
SATISH CHANDRA14 and asserted that Article 20(3) of the Indian constitution uses the term ‘to
be a witness’ and not ‘to appear as a witness’ which broadens the scope outside the court
premises that no person accused of any offence shall be compelled to speak against himself.
Section 161(2) of the criminal procedure code also deals with similar provision it states that “
every person is bound to answer truthfully all questions, put to him by the police officer, other
than the questions the answers to which would have a tendency to expose that person to a
criminal charge, penalty or forfeiture”. Hence any such statement extracted from the accused or
any suspect in the crime, while he is under the state of dis-inhibition would be held
constitutionally invalid and will not hold any evidentiary value in the court of law. But in certain

12
Selvi v. State of Karnataka & Anr,AIR 2010 (7) SCC 263
13
Nandini Satpathy v. Dani (P.L),AIR 1978 SC 1025
14
M.P Sharma and others v. Satish Chandra,AIR 1954 SC 300

8
cases it is the discretion of the court to record the statement as an evidence or not, by first taking
into considerations all circumstances.

According to CrPC every person “is bound to answer truthfully all questions, put to him by a
police officer, other than questions the answers to which would have a tendency to expose that
person to a criminal charge, penalty or forfeiture”. The privilege against self incrimination thus
enables the maintenance of human privacy in the enforcement of criminal justice. It also goes
with the maxim NEMO TENETUR SEIPSUM ACCUSARE i.e., ‘No man, not even the
accused himself can be compelled to answer any question, which may tend to prove him guilty
of a crime, he has been accused of. This maxim expresses a characteristic principle of English
Law. Only free and voluntary confessions by accused are admissible.

[4]. WHETHER DR. ROHAN CAN BE CHARGED UNDER SECTION 316, IPC?

Whoever does any act under such circumstances, that if he thereby caused death he would be
guilty of culpable homicide, and does by such an act cause the death of a quick unborn child,
shall be punished with imprisonment of either description for a term which may extend to ten
15
years, and shall also be liable to fine.

. It is evident from the given post-mortem report that the victim is 20 weeks pregnant and the
accused has caused death of that quick unborn child amounting to culpable homicide. Accused
should be prosecuted on allegations that he should also have assaulted that pregnant women
causing death of the child, which can be made evident that there are injuries on her body , Deep
laceration around the neck [1” wide] , Fractured wrist [Left] and a small abrasion on the right
side of the face. Hyoid fracture present. The following case falls within the ambit of 316, as it
satisfies the ingredients of the section 99 the woman was quick with a child

• the accused did an act to cause the death of such child

• the circumstances, under which the act was done, were such as to make the accused

• guilty of culpable homicide if death had been caused; and the said act did cause the death of
the quick unborn child.
15
The Indian Penal Code, 1860 (Act 45 of 1860) s.316

9
• Here in the accused Dr. Rohan is very reluctant to have the child and also asked to abort the
child in the past, where in it clearly serves the motive that DR. Rohan has the Mens Rea to cause
the death of that unborn child.

Accordingly in a case, Where the accused-husband had strained relations with the deceased
wife, and gave a single blow on the head of the deceased causing her death, and made no attempt
to report the occurrence to the police and told other persons that his wife had committed suicide;
the medical officer stated that in the uterus of the deceased there was a male body 20 weeks old
and that 12 after weeks of conception, the foetus gets life, the charge for the offence under s
30216 and 316, IPC10317, was found proved against the accused husband. Where the accused-
husband caused the death of his pregnant wife, the motive of which was proved to be his illicit
relations with his sister-in-law, the medical evidence corroborated the prosecution case of the
death of the deceased due to throttling, the accused and the deceased were present in the house of
the accused on the date of the incident and slept adjacent to each other, the conviction of the
accused under S. 302 and 316 was found proper. Hence it is submitted that, one of the essential
ingredients of an offence under this sections is that the culpable act or the actus reus should be
done before the birth of the child. Here DR. Rohan has caused murder of the victim, wherein the
actus reus from the accused is proved That act is done before the birth of the child, which
resulted in preventing the child from being born alive or cause it to die after its birth. Dr. Rohan
also has the intention of preventing the child from being born alive or cause it to die after its
birth.

[5]. IS IT A FIT CASE WHERE THE COURT SHOULD ADD A CHARGE U/S 302
IPC AND TRY THE ACCUSED PERSON FOR THAT CHARGE AS WELL?

To make an offence fall under section 302 of Indian Penal Code (hereinafter referred as IPC), the
nature of injuries sustained by the deceased is taken into consideration and is a relevant factor.

16
The Indian Penal Code,1860 (Act 45 of 1860) s.316
17
The Indian Penal Code,1860 (Act 45 of !869) s.103

10
All the ingredients of the offence of murder defined under section 300,IPC 18 are to be fulfilled to
constitute a offence under the above section.

Under clause third of S. 300, IPC, culpable is murder, if both the following conditions are
satisfied; i.e. (a) that the act which causes death is done with the intention of causing death or is
done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted
is sufficient in the ordinary course of nature to cause death. Intention to cause bodily injury ,
which in ordinary course of nature is sufficient to cause death must be proved.

In the present case, the accused forced the deceased to abort the child , he also assaulted her for
the same. Whereas the victim wanted to sort things out between them .

Mens rea mean guilty intention and it is proved through acts of the accused . In the present case,
there is no doubt that the death is an unnatural death. The circumstances of the death indicates
that the accused had some role to play in the death of the deceased which makes a strong case
against the accused for murder .

It is to be noted that, intention to kill is not required in every case, mere knowledge that natural
and probable consequences of an act would result in the death will be alone sufficient for
conviction under section 302 of IPC19.

Section 8 of the Indian Evidence Act talks about motive . It is a fact that makes a person to do
certain act. There can be no action without motive which must exist for every voluntary act.
Existence of motive for committing a crime is not an absolute requirement of the law but it is
always a relevant factor. In this case the motive of the accused can be ascertained from the fact
that he assaulted his wife and wanted to abort the child. He was also unhappy with her leaving
her job. He also made allegation on her that she was in illicit relationship with rajesh. Rohan
planned everything by asking her to stay after dinner and the very net morning she was found
dead.

If for an instance it is taken into consideration that accused had no motive, it is proven fact that
absence of motive is no ground for dismissing the case.

18
The Indian Penal Code 1860,(Act 45 of 1860) s.300
19
The Indian Penal Code,1860(Act 45 of 1860) s.302

11
Actus reus is a wrongful act and it relates to the conduct of the accused . In this case the
prosecution wants to bring it to the attention of the Hon’ble court that the circumstantial
evidence shows that within all probability, the act must have been done by the accused.

The post mortem report has also suggested the injuries on the body of the deceased and a sign of
struggle between the accused and the deceased.

Section 103 of IEA, 187220 talks about plea of alibi and provides that it is for the accused who
pleads alibi to prove it.21 Burden to prove plea of alibi is on accused pleading it. Burden is on the
accused who is setting up defence of alibi to prove it but even so, the burden of proving the case
against the accused is on the prosecution irrespective of whether or not the accused have made
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out plausible defence. Onus is on accused to substantiate plea of alibi and make it reasonably
probable. Where the accused pleads that he was elsewhere at the time of incident, the burden to
prove the same lies on him. Though burden is not as heavy as on the prosecution to prove its case
beyond reasonable doubt, the defence of alibi can be probabilised also. The false plea of alibi
cannot destroy the prosecution case which is supported by direct and unshaken evidence of the
eye-witnesses. The false plea of alibi cannot destroy the prosecution case which is supported by
direct and unshaken evidence of the eye-witnesses. From the above authorities, it is clear that the
burden is on the accused to prove that he was not present at the apartment when the deceased
died.

The last seen theory comes into play where the time-gap between the point of time when the
accused and the deceased were seen last alive and when the deceased is found dead is so small
that possibility of any person other than the accused being the author of the crime becomes
impossible. It would be difficult in some cases to positively establish that the deceased was last
seen with the accused when there is a long gap and possibility of the other persons coming in
between exists. It is submitted that the deceased was last seen together with the accused. There is
a strong case against the accused as there was no one else in the apartment that morning. The
counsel humbly submits that the charges U/S 302 of IPC should be added and the accused should
be tried under that charges as well.

20
The Indian Evidence Act,1872 (Act 1 of 1872) s.103
21
Kehar Singh v. State (Delhi Administration), AIR 1988 SC 1883
22
Yusuf S.K. v. State, AIR 1954 Cal 258

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 PRAYER

In light of the facts stated , arguments advanced and authorities cited , the petitioner humbly
prays before this hon’ble court to be graciously pleased to

(a) To accept the recording from the mini music player (i.e Neha’s device ) as an evidence in
the court of law .
(b) To not allow the narco analysis test to be conducted on Dr rohan and Rajesh .
(c) To add charge under section 302 of the Indian penal code and try Dr rohan (accused ) for
that as well.
(d) And to pass any such orders as it deems fit to this Hon’ble court.

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